FOSTA: Still Waiting For Trouble

It’s been over a year since FOSTA/SESTA became law in America.And we are still waiting.Waiting for trouble.Waiting for the real fight.Waiting for something—anything—to happen.

That isn’t to say that this law has not had a major impact on the world of Transactional Sex.It has.A tremendous impact.While FOSTA didn’t bring down BackPage, it did directly lead to a number of websites voluntarily shutting down operations.

Most recently, Massage Republic announced that they would no longer be servicing advertising in the United States due to the law.This is obviously a move that they made under the advice of their own legal counsel.The same was true of all the other sites that chose to shut down.They (or at least their lawyers) didn’t feel like they would be able to win a fight against this law if it was enforced on them.That is not an unreasonable position to take.

But still many websites persist.And many new ones have come along.And we wait.

I expect that some of the newer (and older) websites are just marking time, trying to make as much money as they can before they close shop once trouble really starts.That is an understandable position to take.If the government is not going to enforce the law yet, why not profit from that lack of enforcement as long as possible.I’m sure there are a few people who are now regretting getting out last year.At this point those sites that closed last Spring have missed out on an entire years worth of income.

But the rest of us wait.

Some of the websites operating now feel that they are in a protected enough position to avoid the reach of the FOSTA law.And I’m sure some of them are.Other sites are probably waiting for the fight.I am.

While I do not believe The ValleyScott Blog violates the law, I’ve been told that it might (due to the incredibly vague way the law was written).I relish the idea of a legal fight over FOSTA because I believe that I can win it.I expect that there are a few others out there who feel the same way about their sites.

The one serious attempt at challenging the legality of FOSTA failed last year because the judge ruled that the plaintiffs did not have legal standing to sue due to the fact that they had not lost anything or actually been prosecuted for violating the law.I can accept that ruling, because it was fundamentally accurate.This ruling did not validate the law, it just meant that any legal challenge needed to wait until the law was used.

So we wait.

At a certain point, the Department of Justice will have to come for one of us.I had heard (and wrote about) rumors that this was going to happen at the beginning of 2019, but it seems those rumors have proven false.So I sit here at my computer waiting for things to happen.

I have no idea why there have been no actual attempts to make use of this law.I can only speculate that prosecutors might be shy of making use of legislation that is so clearly a violation of the US Constitution.Perhaps legal wisdom is outweighing their prosecutorial desires.If so, that is a very good thing.

I do hope that our community can go on unmolested by the government. Hope that we can start working together to create a path towards decriminalization.But I know that there are plenty of people out there in power who hate us and want us stopped.So I wait, we wait, for the trouble that must some day come our way.

Until then, let’s all remember to have fun, play safe, and be the best damn community we can be.Sex is fun, so let’s keep it that way—after all, if it stops being fun, what are we doing here at all?

Actually, these lawsuits are very different from what my post is addressing.
These two suits are attempt by private citizens to sue Facebook, and FB potentially not having the protections against such lawsuits that it had before FOSTA.
That is a completely different thing than government prosecutors using FOSTA to shut down websites.

Even if prosecutors don’t take up the cause, civil cases are inevitable. Not only advertising sites are vulnerable. Think of the many ordinary services, supported by computer systems, that when used by a sex worker do actually “facilitate prostitution”! Take driving directions, for example — if a client uses Waze to drive to an incall, Waze can be sued. Any disgruntled provider with a hungry lawyer, has a case against huge corporations. Phone companies, hotels, banks, ride-hailing, all are useful in CTS and thus are targets of opportunity.

So far the explanation I have heard is the government knows this law won’t survive Supreme Court scrutiny so they aren’t actually going to put it in a situation where it could get tested in court. Rather they want to keep it around to use it as a threat to get companies (like massage republic) to voluntarily shut down to avoid the costly lawsuit.